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Disciplinaries and grievances during the Coronavirus crisis

The way employers should conduct disciplinaries and grievance processes has changed as a result of the COVID-19 pandemic. Here’s how to make sure you’re up to speed.

If you’re running a business during the Coronavirus crisis, and there are ongoing disciplinary or grievances procedures with your staff, you may be wondering what to do. The same will be true if new issues have come to light during this period. In most companies at the moment, staff are either on furlough, working from home or following public health guidelines in the workplace, by ensuring social distancing. How are you supposed to conduct procedures in the way you typically would?

To help you during this time, which is challenging in all areas of business, ACAS has issued new guidelines for employers which thy need to be aware of. In this article, we’ll sum up the key points.

Employment Law still applies

The crux of the new guidance is that Employment Law relating to disciplinaries and grievances has not changed, and there still needs to be a fair and reasonable process. However, what is fair and reasonable may not be quite the same in current times, so careful consideration will need to be given about whether to persist with an ongoing disciplinary or grievance, or commence a new one, while the pandemic is still affecting the way we work.

Employees can raise a grievance whether they are in the workplace, working from home or on furlough. It is then up to the employer to decide whether they can investigate and decide on it fairly. In particular, it’s important to have the health and wellbeing of all staff front-of-mind. Every interview and meeting should be conducted in accordance with public health advice, including social distancing and if this isn’t practical, a delay may be essential. As always, any changes to the procedure, and the reasons for them must be notified to the employee concerned in good time, so that they know what is going on.

Dealing with furloughed employees

Where the guidance differs from what was there before, is how employers should deal with furloughed employees during grievance procedures. Of course, as part of the Government’s rules around furlough, employers cannot compel their furloughed employees to undertake any work activities insofar as it benefits the employer. That is primarily interpreted as financially benefiting the employer, but resolving disputes could also be considered to be a benefit. However, the new guidelines state that an employee on furlough can be asked to participate in a disciplinary or grievance procedure, but not compelled and if they do, any meetings must be carried out in line with the Government’s health advice.

Video meetings

An employer may decide that they can proceed immediately with the disciplinary or grievance by utilising video technology. This is allowable; however, employers should ensure that everyone involved in the process has the correct technology in order to participate. This includes anyone nominated to accompany the employee.

ACAS notes that participants have no automatic right to record any video meetings as part of the procedure and should only do so by explicit agreement. Furthermore, anyone doing so must comply with current data protection law.

Delaying carrying out the procedure

Because not all employees will be in the workplace, or it may not be possible to carry out the procedure either via video, or in-person with social distancing, employers may choose to delay.

As well as the health and wellbeing of their employees, employers will have in mind matter such as:

  • What are the individual circumstances of the parties involved?

  • Does the disciplinary or grievance need to be handled urgently?

  • Would it be fairer to all if the procedure was postponed until people can come back to the workplace?

Each case will be different, so it’s important, and circumstances may change during the process, so it’s important to keep these considerations under review.

Communication is key

As with most things in business, clear communication is essential when deciding whether the grievance or disciplinary should go ahead.

Care should be taken to clearly understand everyone’s situation and views, whether that is the investigator, or the member of staff concerned. As already mentioned, once a decision has been reached on how to progress things, it should be clearly explained to all concerned and as quickly as possible. Failure to do this may result in allegations of not using a fair and reasonable process and could store up further problems for the future.

Find out more

If you have any questions about Employment Law during the COVID-19 crisis, it’s time to talk to Couchman Hanson.

We are currently offering you a free, 30-minute call with a Couchman Hanson employment lawyer, where you can get all your questions answered. It’s peace of mind during these uncertain times.

To find out more, call 01428 722189 or email enquiries@couchmanhanson.co.uk

Daniel Couchman